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SEPARATION OF POWERS Justiciability Standing: In order for [Party] to be considered a proper plaintiff to present an issue to the court for

r adjudication he must have standing. There are three constitutional requirements: (1) [Party] must have suffered an injury in fact (2) that is directly traceable to [Defendant]s unlawful conduct, and (3) a favorable court decision is likely to redress the injury. First, to have suffered an injury in fact [Party] must raise more than a generalized grievancethat is, the injury must be concrete and particularized. Here, [Party] has/has not shown that . . . and because the [prohibited act] would bring him within the [infringing law] he thus has/stands to suffer an imminent injury. [Defendant] will argue [Party] does not have standing: o [Defendant] will argue that [Party] does not have standing because the harm he has suffered is abstract and stigmatic in nature. (Allen v. Wright) o [Party] is raising a generalized grievance. His injury is just that [Defendant] violated the law, and for the same reasons the court denied standing in Allen v. Wright it should refuse to hear the case because [Party] has suffered no judicially recognized injury to a personal interest. o Further, if the court finds standing here, it would too greatly expand its powers, in violation of separation of powers. o Finally, per Lyons in order for injunctive relief to be granted, [Party] would have to show that he is likely to be injured again and hence the injunction is necessary to stop future injuries. [Party] is not entitled to equitable relief because they cannot show the statute will ever be violated again. Plaintiffs response: Lyons is distinguishable because there is a likelihood that he is likely to be injured again. [Party] will argue that his injury is particularized because . . . o However, even if this is a generalized grievance, the Court should distinguish Allen and follow the precedent of Mass v. EPA, where violation of a statute was held to be a cognizable injury. In Allen there was no procedural right for the parents to sue the IRS to apply laws in a non-discriminatory fashion, but Congress specifically provided a procedural right for states to sue the EPA for failing to perform its function. This case is better analogized to Mass because implicit within the concurrent right to enforce [statute] is the ability to sue for violations of the statute. Although there is no explicit right to bring suit, the next logical step of a law that . . . is that there has to be a judicial channel available to enforce this mechanism. Further, [infringing law] is clearly the cause of the injury [Party] will suffer, and any chilling effect he has already suffered, and thus the causation requirement is met. Finally, in order to avoid issuing impermissible advisory opinions, the court must find that the injury is redressable. In this case, striking the [infringing law] will leave [Defendant] no other option but to abide by the injunction, and thus the final requirement for standing is met. o [Defendant] will argue this harm is not redressable, because . . . o However, if the injury is characterized not as [Defendant] does, but as . . . then a favorable court ruling is likely to vindicate [Party]s rights. o Redressability: Linda v. Richard (which held that enforcing a law requiring father to pay child support was not redressable because the father still had another option under the law to avoid abiding by the decisionhe could go to jail.) However, Linda is an outlier.

Ripeness: Clearly Ripe: Because the injury has already occurred [Party] is not seeking pre-enforcement review of a law, and therefore the issue is sufficiently ripe for adjudication.

Maybe Not Ripe: Where, as here, the plaintiff is seeking pre-enforcement review of a statute, the court must consider whether the issue is ripe for review. Under Art. III the court can only hear cases or controversies, and since the statute has not yet been enforced against [Party] there is no case or controversy yet & case is not considered ripe. In deciding whether a case is ripe, the Court will look at: (1) the harm the plaintiff will suffer without pre-enforcement review; and (2) the fitness of the issues in the record. o [Party] will argue pre-enforcement review is appropriate because if the Court waits until . . . his right will already be infringed on in an irreparable way. Further, [Party] will assert that the issue is adequately focused and presented for review: it is clear how the law will be enforced in the future. Therefore, the court is adequately equipped to address this issue now rather than waiting for a real prosecution. o [Defendant] will seek to prove that adjudication is premature because the dispute is insufficiently developed or too speculative to warrant judicial action.

Mootness: In addition to the other justiciability requirements, the plaintiff is required to present a live controversyan ongoing injury at all stages of the case. Here, because . . . there is no live controversy, and [Defendant] will argue that the case should be dismissed as moot. However, [Party] may still argue that this case is not moot by looking to the exceptions. o Wrongs Capable of Repetition but Evading Review: [Party] would try to analogize violation of [statute] to Roe or the election cases. Like those, [Defendant]s [infringing action] is likely to occur again. Given to rapidity and . . . some wrongs would be likely to always evade review. [Defendant] will argue that this wrong is not likely to evade review should it occur again because . . . [Defendant] can also argue under the logic of Defunis that this is not a predictable situation likely to come about again, and therefore the case should be dismissed as moot. o Voluntary Cessation: Even though the [infringing action] was halted prior to court action, this exception only applies when the defendant ceases the offending practice because of the threat of a lawsuit. Here, this was an independent cessation, and therefore the exception is not applicable.

Political Question Doctrine: The Article III case and controversy must be committed to the court for resolution; the Supreme Court wont hear certain classes of cases that the Constitution leaves to the discretionary powers of the other, elected branches to decide. Defendant may argue that this case raises a non-justiciable political question, and therefore the court is not the appropriate forum for this issue to be vetted based on the factors from Baker v. Carr. Defendant will argue this is a policy dispute between two democratically elected branches. Perhaps # of the Baker criteria apply. o Resolution of the question raised. . . is demonstrably committed to [Branch] for resolution. The fact that the Constitution apportions war-making power between Congress and the President is not sufficient to demonstrate that there is a demonstrable textual commitment of resolution to either of those branches; it does provide some support, however, for the proposition that the issue is left for wrangling between President and Congress, but is not for the Court to decide. o In addition, there are no judicially manageable and cognizable standards for decision. Judicial resolution of these issues requires the courts to decide . . .. The Court has dealt with analogous issues in the context of inferring from the appointments power a limited removal power, and has relief upon structural principles to do so. These issues are similarly derived from the relationships

outlined in the Constitution, so if it is within the judicial ken to decide structural rules judges must be able to decide these issues as well. o There may also be/there are not sound prudential reasons for finding these issues to be political questions. These issues do/do not require an initial policy judgment that is inappropriate for judges to make, nor would judicial resolution of them be any more disrespectful of either Congress or the President than any other exercise of judicial review. o There is no obvious reason to defer to the political judgments of Congress or the President, must less an unusual need for unquestioning adherence. o There might be the potential for embarrassment from multifarious pronouncements by various departments on one question, but this would result only if the courts should rule against Congress/the President and they refuse to comply with the judicial ruling. Plaintiff will point to the removal cases and Bush v. Gore to counter Defendants argument that this issue is inappropriate for judicial attention; the political question doctrine is dead. If the court felt justified in deciding a presidential election, it begs the question what issues are not fit for judicial review.

Baker Criteria: A. Jurisdictional Factors: (1) Does the Constitution empower another branch to deal w/ the issue? B. Merits-based: (2) Does the Judiciary lack the resources or apparatus to provide adequate discovery and management standards to give the P adequate relief? C. Prudential/deferential The need to speak with one voice as a Federal Government: (3) Impossibility of deciding question w/out making an initial policy determination; (4) Impossibility of resolution w/out disrespecting other branches; (5) Unusual need for unquestioning adherence to a political decision already made; (6) Potential for embarrassment from varied pronouncements on a single question Any that Dont Apply: None of [these] justiciability doctrines will bar suit on the given facts. Assuming the court reaches the merits . . . Executive Power Does the President have Inherent Authority? Article II vests the President with the executive power to take care that the laws be faithfully executed. Because neither the Constitution nor Congress expressly granted the President the power to . . . whether the President exceeded his authority when he . . . depends on whether the court takes a more formalist or functional approach to the issue of inherent executive authority. In Youngstown, although four justices articulated positions that there is no inherent executive authority, the majority concluded that some inherent power existed. Therefore, the President would want to establish plenary authority to engage in activity without Congressional approval under Model 4 by arguing that this case implicates purely foreign affairs. o There is a general understanding that the president has more authority when dealing with foreign entanglements as opposed to domestic affairs; for example under Article II the president is commander in chief of the armed forces. (Curtiss-Wright). The very nature of transactions with foreign nations often requires caution and unity of design, and the need to present a clear & unified face to the world often depends on secrecy and dispatch that the President has a comparable advantage in providing over Congress.

Under the reasoning of Curtiss-Wright, the presidents power over foreign affairs is limited only by the Constitution. Similar to the broad authority granted in Curtiss-Wright in estopping arms shipments to countries at war with Bolivia, the president has wide discretion to engage in foreign affairs transactions by . . . Congress should be able to distinguish this controversy from what was at issue in Curtiss-Wright by saying this also implicates domestic rights and obligations through . . . Therefore, this case is more analogous to Dames-Moore, where the court determined that a foreign agreement that implicated domestic rights had to be addressed under the Jackson Tripartite Framework (simply an expansion of Model 2). Per Dames-Moore, this falls under . . . o Because the president has done something that is incompatible with the express will of Congress, his act is unconstitutional. o President can distinguish Dames-Moore. Even assuming the Tripartite Framework does apply, this is a clear Category 1 issue: Congress has already given authorization through. . . Therefore, because President has acted with authority of Congress his authority is at its highest ebb and his actions are constitutional. o This might also be a Category 2 case. In the face of Congressional silence the Presidents power is in the twilight zone; he shares concurrent authority with the Legislative Branch. Congress will argue that there was no imperative or need to . . ., but President will argue the direct opposite: based on the imponderables and needs of the time he is owed complete discretion. Could this also be a Model 3 case? The Presidents actions infringe on Congresss ability to do its job, and is therefore usurping legislative responsibilities. o

Categories from Youngstown Jacksons concurrence which Ct adopts in Dames & Moore: 1. Maximum Power: when President acts pursuant to express or implied congressional authorization. 2. Moderate Power: when Prez acts in the absence of either a congressional grant or denial of authority, he is said to be in the Zone of Twilight where he and Congress may have concurrent authority or in which its distribution is uncertain. Where Congress remains silent look to (a) statutory language in related legislation (broad or narrow in scope)(b) subsequent congressional acquiescence; (c) look at history, is this an area where the President has traditionally had broad power? Silence could mean implicit approval if in furtherance of Congressional silence, (Dames and Moore) or expresius unius- if they specified other stuff and didnt include this, it could mean implicit disapproval, Look at circumstances to see if it is ok 3. Lowest Power: Where President acts in direct contradiction to the express or implied will of Congress, Presidential power is at its lowest and the court should strictly scrutinize Presidential action. (ex. Steel Seizure) President is disobeying a federal law and such action are only permissible if the law enacted by Congress is unconstitutional. Look at the history here. If in this category, act needs to withstand heavy scrutiny or else is will be held unconst. Legislative Power Is the Statute an Unconstitutional Legislative Veto? Congress may legislate only if there is bicameralism (passage by both House & Senate) and presentment (to the President to sign or veto). Because [statute] did not go through this two-house process it is the equivalent of a legislative veto, and legislative vetos are unconstitutional. The first step to proving whether the [statute] is a legislative veto is determining whether it a legislative actsomething with the purpose or effect of altering rights, duties, and obligations in some way, or are policy determinations. (Chadha)

Defendant will show that the [statute] alters his rights in . . . and that it is a policy determination. Therefore, because it is a legislative act that hasnt gone through bicameralism and presentment, it is unconstitutional. Partys response will be that Chadha relied on a very formalistic approach to separation of powers, one that has been replaced by the functionalist approach represented in the removal cases like Morrison v. Olsen and PCAOB. The purpose of the requirement is to prevent Congress from aggrandizing its power and interfering with functions of the Executive Branch, which this doesnt do because Congress has the ultimate power to . . . Instead, this [statute] exists as a check on executive power and thus serves the checks and balances function of the federal government. o Further, because Defendant has already agreed to the statute it seems implicit that he should have to abide by it.

Does Congress have the power to Limit Removal? Congress can limit removal by statute if it is an office where independence from the president is desirable and the statute does not prohibit removal altogether, although it may limit removal to good cause even for an officer who is ideally independent from the President. (1) Is independence from the President desirable? There is no clear test for when independence from the president is desirable. o Previous tests suggested by Humphrey or Morrison were difficult to apply in practice. o Ultimately, analysis must be functional and contextual: are there good reasons why the office should be independent of the President? There are some purely executive officials (think Cabinet members) who must be removable by the President at will if he is to be able to properly execute his Art. II powers. (2) Are Congresss limits on removal constitutional? Congress cannot participate directly in the removal of executive or judicial officers other than through impeachment. Congress cannot reserve for itself the power to remove an officer charged with the execution of the laws. o If Congress retained the power to remove executive/judicial officials in effect it would mean Congress had usurped control over the function of a coordinate branch. While the majoritys synthesis permits other branches to have some control over the president (i.e. a bit of overlap is good) underlying adherence to SoP concerns necessitates some limits on the Congressional power to limit removal of executive officers. Congress cannot completely prohibit presidential removal. o If Congress barred the President from removing an officer even for cause, this would be unconstitutional as an encroachment on the Presidents Art. II duty to take care the laws be faithfully executed. If an officer is shirking his administrative duties, the President must be able to remove him from office. Congress cannot insulate a federal officer from executive control through double for-cause removal authority. BUT: o Congress can assign removal power to an executive official other than the President. o Congress can limit removal to where there is good cause. Cases: Myers: Stands for the broad proposition that any congressional limits on the removal power (of purely executive officers) are unconstitutional. o Congress cannot exercise any power not delineated in the , but the executive can; further, the act of removal is executive in naturethe President (not his subordinates) must take care that

the laws be faithfully executed, and Art. II gives a general grant of power to the Executive which includes the power of appointment. o The power to remove is an incident of the power to appoint; therefore, the president has the exclusive power of removing executive officers of the U.S. whom he has appointed by and with the advice and consent of the Senate. Humphrey: For some quasi-legislative or quasi-judicial positions, Congress may by statute limit the Presidents removal power where independence from the executive would be desirable. o Congress, pursuant to its powers under Art. I can create independent quasi-legislative and quasi-judicial agencies, and it is therefore important that it be able to insulate its members from presidential removal unless good cause for firing existed. o Myers holding applies only to purely executive officers; quasi-legislative & quasi-judicial positions are different. Practical effect of this is to draw a distinction between Cabinet officials, who are there to carry out the Presidents policies, and those in independent regulatory agencies with area-specific expertise & who need the ability to act independently of executive control in the discharge of their duties. Weiner: Extended functional reasoning from Humphrey, going further to hold that even without a statutory limitation on removal, the President cannot remove officers where independence from executive control is desirable. o For example, the War Claims Commission performed an adjudicatory function; therefore, it needed to be free from the threat of removal so that it could make its determination on the basis of law and fact as opposed to political influence. Bowsher: Congress cannot give itself the power to remove officials charged with the execution of laws except by impeachment. o It is impermissible for the executive power to be exercised by a person who is totally insulated from presidential removal. Morrison v. Olsen: Rather than draw a line between purely executive tasks and those that are quasilegislative or quasi-judicial (like Humphrey court did), the real question concerning the constitutionality of limits on the presidents ability to remove independent officers is whether the removal restrictions are of such a nature that they impede the presidents ability to perform his constitutional duty. o For example, the adjudicatory nature of certain officials suggests the official was intended to operate with impartiality, free of presidential influence & control. In such an instance, if the Presidents only reason for wishing to dismiss the official was a desire to name appointees of his own, the Presidents action would be unconstitutional. o However, if Congresss silence were construed to bar the President from removing an officer even for good cause, the limitation would probably be unconstitutional as an unwarranted encroachment on the Presidents Art. II duty to care care the laws be faithfully executed. Thus, if the presidents reason for removing officers was that they had been derelict in performing their duties, the President could constitutionally remove them from office. PCAOB: Congress may not insulate a federal officer from executive control through double for-cause removal authority. While it is acceptable for Congress to prevent the removal of SEC commissioners except for cause, Congress cannot also require cause for the removal of officers who are only removable by the SEC. o Two problems with double for-cause removal: Impairs Presidents ability to execute the laws. Interferes with political accountability; people do not know who is responsible for the particular decisions being made. o This case pushes the outer edge of what Congress can authorize without intruding on the executives functions. o NOTE: Because the ultimate issue is accountability, the executive branch cannot waive SoP concerns, so it is of no import that one or more administrations supported the limitations on PCAOB removal.

TO ENACT A STATUTE CONGRESSS ACTIONS MUST BE CONSISTENT WITH THE CONSTITUTION: 2 MAIN BASES FOR AUTHORITY: COMMERCE CLAUSE & THE ENABLING PROVISIONS OF THE CIVIL WAR AMENDMENTS. Is it hard to argue that the prohibited act has a substantial affect on interstate commerce? If its not economic Congress would have to show that each individual prohibition has a substantial effect on interstate commerce since it wouldnt be able to aggregate the effects pursuant to Wickard. o Therefore, Commerce Clause would be a pretty weak basis of authority for the statute. If trying to regulate individual conduct Congress is not privileged to exercise its 5 authority, so must be commerce clause. Necessary & Proper Clause: (1) Identify an enumerated power that might be relied upon by Congress. (Legitimate ends) (2) Invoke N&P clauseCongress may employ any means that are rationally related to the exercise of the enumerated power, so long as it is not specifically forbidden by the . Determining Scope of N&P Clause: o Scalias Dissent in Raich: Congress may legislate when it is necessary to effectuate a comprehensive regulatory scheme carrying out its powers under the (i.e. regulating conduct that operates in interstate commerce). o U.S. v. Comstock Considerations: [The Court] lists five factors that determined the outcome [in Comstock]: (1) The breadth of the Necessary and Proper Clause (2) The long history of federal involvement in this arena (3) The sound reasons for the statutes enactment in light of the Governments custodial interest in safeguarding the public from dangers posed by those in federal custody (4) The statutes accommodation of state interests, and (5) The statutes narrow scope. Taken together, these considerations lead us to conclude that the statute is a necessary and proper means of exercising the federal authority that permits Congress to legislate . . . Congresss Ability to Criminalize Conduct: Congress only has certain enumerated powers, and the only power it has to criminalize conductbeyond the three crimes mentioned in the is pursuant to one of those enumerated powers, in particular through the N&P Clause. In other words, Congress can criminalize conduct only if doing so is necessary and proper for carrying out one of its other constiutionally authorized powers. Commerce Clause

FIRST: Check 5 of the 14th Amendments congruent-proportionality test to determine whether Congress may regulate: 14th Amendment provides that no state can abridge the privileges or immunities of such citizens, nor deny any person of life liberty or property without due process of law. 5 grants Congress power to enforce this by appropriate legislation. Test: There must be congruence & proportionality between the injury to be prevented or remedied and the means adopted to that end. o 5 authority can only be used to regulate state action, not individual conduct. o Congress must be trying to remedy a constitutional violation.

o o

Through 5 Congress can abrograte state sovereign immunity. Burden on Congress to justify prophylactical legislation is inversely related to the standard of scrutiny applied to that level of discrimination. E.g. for a state act that discriminated on the basis of age, Congress would have to show a history or erratic discrimination.

Is the Federal law within Congress authority under Commerce Clause? Congress will contend that it had adequate authority under its power to regulate interstate commerce to enact [Act]. The act does not regulate the channels of interstate commerce, nor does it regulate an instrumentality of interstate commerce; therefore, if Congress has authority under the commerce clause to enact [Act], it must be because the subject matter regulated . . . has a substantial effect on interstate commerce. The regulated activity, while intrastate, is surely economic. While Congress has made no findings of fact to support the conclusion that . . . nor were they present in Raich & the court indicated that none were needed to support validity of the act at issue. Moreover, as the Supreme Court stated in Raich, congressional regulation is valid so long as there exists a rational basis for Congress to have concluded that the aggregate of the activity that it is seeking to regulate will exert a substantial effect on interstate commerce. Under United States v. Lopez there are three categories of activities Congress can regulate: Use of the channels of interstate comerce (highways, railways, etc.). o Darby: Prohibition of shipment in interstate commerce of products manufactured by employees who earned less than minimum wage (adopted the substantial affects test). o Heart of Atlanta Motel: Discouraging interstate travel. Regulation is acceptable to keep channels of interstate commerce free from immoral or injurious uses, like discrimination. Government could cite to Heart of Atlanta and argue that the prohibition on . . . is meant to prevent moral injuries. The instrumentalities of interstate commerce (railroads, airlines, trucks, ships, or persons/things in interstate commerce). o Reno v. Condon: Personal identification info is an article in interstate commerce. Activity that substantially affects interstate commerce o The Government will also argue that [Act] is a valid exercise of the Commerce Clause power, even after Lopez, because it regulates activity that has a substantial effect on interstate commerce. One of the key issues in determining whether an activity has a substantial effect is whether the activity is economic or non-economic in nature. o Economic: Congress can regulate activity if some rational basis exists that, in the aggregate, the activity substantially affects interstate commerce or is part of a broader economic scheme. In evaluating, there is great deference given to Congressional findings and it is likely that the regulation will be held constitutional. If activity is economic, the chance it is beyond Congresss power is very small. What is Economic Activity: SPLIT Majority in Raich: Activities that affect supply, demand, or market prices (very expansive definition). Healthcare Case: Production & consumption of commodities. Dissent (OConnor) in Raich: Things that affect commercial activities. This may be an issue of framing; grasp ambiguity. Consider the Healthcare Caseis the conduct being regulated the buying of health insurance (economic) or the decision not to enter the market for health insurance (non-economic). EXAM: Consider both facially commercial activities (look to legislative findings) and whether the law regulates commercial activity as applied. Aggregation Principle: Congress may regulate an individuals activity, however trivial, if all similar activities taken together have a substantial economic effect on interstate

commerce. (Wickard (home grown wheat), Perez (loan sharking), Raich (medicinal marijuana use)) Rational Basis Standard: Congress is not required to legislate with scientific exactitude. Legislation will pass judicial scrutiny so long as Congress had a rational basis for concluding the activity it is seeking to regulate has a direct effect on the free flow of interstate commerce. (Katzenbach) If the court finds the activity substantially affects commerce, then the Court requires only that the means selected by Congress be rationally related to the objective sought. Very deferential. BUT Intent not Impact: It is not relevant to look at the intent of the regulation. Must look at whether regulation itself involves interstate commerce. Is the activity economic in itself or does it merely have economic effects? (Darby, Lopez & Morrison) Impact of guns on schools not relevant to analyzing regulation of the possession of handguns. Legislative findings on the broad impact of violance against women not relevant to Courts analysis, because violence against women is not an ecnomic activity. o While findings are not necessary, in their absence the Court feels free to make its own judgment about the substantiality of the effect of the regulated activity on interstate commerce. Activity/inactivity distinction rejected. (Healthcare Case) EXAM: Look to specific statements in legislative history to find particular findings that support our side. If youre arguing in favor of the regulation you will want to establish that activity is economic so you can aggregate the effects of it. Non-Economic: Less deference is given to Congressional findings and there must be some jurisdictional element that links the activity being regulated to interstate commerce. No aggregation. No deference is given to the rationally-based judgment of Congress, which is based on aggregation principle. NOTE: If Congres is attempting to regulate an individual act, it will be immensely difficult to show an individual, non-economic act has a substantial effect on interstate commerce. Lopez & Morrison Analysis: An attenuated link between activity & interstate commerce wont do. If no jdx hook & no legislative findings about the effects on interstate commerce and only an attenuated link, Congress cannot regulate (Morrison & Lopez). Legislative Findings: Evidence of substantial effect on interstate commerce can be derived from Legislative History, but findings are not determinative. How Much Deference is Owed? SPLIT o Morrison: Not much o Lopez/Raich: A great deal of deference is owed. Jurisdictional Hook: Evidence of substantial effect on interstate commerce can be derived from a jurisdictional element in the statute. In Raich lack of jurisdictional hook did not defeat rational basis test. Jurisdictional element creates a presumption of validity unless Congress is intruding into an area of traditional state & local concern, like crime, education, family law, etc. BUT Necessary & Proper + Commerce Clause Power: Congress has the authority to regulate intrastate activity that does not substantially affect interstate commerce if such regulation is necessary to make the regulation of the interstate market effective. Broad Economic Scheme: Congress can regulate purely intrastate activity that is not itself economic if it concludes that failure to regulate that class of activities

would undercut the regulation of the interstate market in that commodity. (Raich) o BUT doesnt this ultimately render Lopez nothing more than a drafting guide to Congress? If they are interested in regulating intrastate activity, they need only devise a comprehensive scheme to do so rather than a single federal regulation. N&P analysis does not necessitate that regulation involve economic activity, just need to show that regulation is a rational means to the exercise of an enumerated power. Gives broad power to Congress to regulate non-economic activity. Relevant Question: Whether the means chosen are reasonably adapted to the attainment of a legitimate end under the commerce power. (Mulloch standard) o Broadly defers to Congresss judgment about whether there is a legitimate end. o BUT are the ends legitimate? Argue no somehow What Constitutes Reasonably Adapted? Raich SPLIT o Thomas: The means must be plainly adapted to a legitimate end. Moving towards conclusion that the means chosen must be indispensable rather than convenient. o Scalia: So long as the end being regulated is a constitutionally legitimate use of the commerce clause power, the means chosen are similarly constitutionally invalid. POLICY: This line drawing between commercial/non-commercial activities is necessary to prevent Congress from exercising a plenary police power. There must be some line between what is truly national & what is truly local. States as Laboratories of Experimentation: States need to be able to experiment in legislating based on local needs. Slippery Slope: Federal Government is supposed to be one of limited power, and allowing them to regulate x activity will set the wrong precedent. We enforce the outer limits of Congresss Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereinty from excessive federal enroachment & thereby maintain the distribution of power fundamental to our federalist system of government. (OConner, dissenting in Raich) BUT after Raich what is the limit on the power of the federal government? EXAM: Does whatever is being regulated seem to give Congress too much power, which may be destructive of our vertical separation of power between the state and federal government? May tempt some justices (Kennedy in Lopez) to think that the particular regulation may be declared unconstitutional because it violates our structure. Political Safeguards Argument: The limitation on federal authority over the states is not found in the commerce clause but in the structure of the federal government itself. The federal political process preserves states interests and ensures that laws that unduly burden the statues will not be promulgated. Do not need to worry about protecting the autonomous interests of the sovereign states because their representatives in Congress will vote in alignment with their interests. BUT Elected federal officials cannot be trusted to be the sole judges of the limits of their own power to preserve the federal balance. In INS v. Chadha court noted the hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power. This pressure applies just as strongly to the federal government vis--vis the states as it does with the different federal branches vis--vis each other. In any case states are closer and more responsive to the people.

10th Amendment 10th amendment is no limit to protect state prerogatives. Only the political process. o 10th Amendment is only relevant in anti-commandeering cases in which the chain of accountability breaks down & state resources are being channeled for federal use. o Commerce clause authority cannot be used in a particular way to command states to act in a way that engaged in a regulatory function. Even if [Act] is authorized by a valid power under which Congress can abrogate state sovereign immunity, it may be invalid as commandeering in violation of New York and Printz. The required actions occupy a middle ground between these precedents and permissible regulation per Reno v. Condon. Like the law upheld in Condon, the requirements of [Act] do not require the states to regulate their citizens; they are regulations of the states themselves. However, Condon may be read as drawing an act/omission distinction: Congress can prohibit certain acts by the States but cannot require affirmative conduct. If this is the lineand in terms of preserving state autonomy this line makes considerable sensethen the requirements of [Act] do trigger the anti-commandeering rule.

INDIVIDUAL RIGHTS 5 of 14th Amendment FIRST: Can Congress legislate pursuant to Commerce Clause? BUT, cannot abrogate state sovereign immunity. Congress can forbid practices that are not themselves unconstitutional if the law is aimed at preventing or remedying constitutional violations. (Katzenbach v. Morgan)

5 of the 14th Amendment enables Congress to provide remedies for violations of Equal Protection and Due Process. The remedy proposed by Congress must be a proportional and congruent exercise of Congressional power, and Congress cannot subject to invalidation too much conduct that would be found constitutional by the standard of the Court. Congress would argue not a good exercise of its power because it would invalidate statutes that have a disparate impact on the right to . . . , whereas the Constitution only bars statutes that have a discriminatory purpose as well. o Therefore, this case can be distinguished from Hibbs & Tennessee v. Lane. Party would say the court is creating a false dichotomy between the discriminatory purpose and impact standard. City of Mobile reestablishes the standard that has been articulated. So long as the statute applies the same standard as City of Mobile, it is unlikely to find unconstitutional things that were upheld by the court. Because there are few differences, this is a congruent and proportionate exercise of power.

a. Boerne and its progeny suggests that Congress lacks power to impose new substantive obligations on the states, but Congress retains the authority to impose remedial or preventative obligations that go beyond what the Court itself would require, so long as these obligations are congruent and proportionate to what the Court would deem a constitutional violation. b. Congresss burden in justifying prophylactic laws enabling citizens to sue states under 5 is inversely related to the burden that states must carry in passing the discriminatory laws in the first place. i. Where Congress has sought to remedy discrimination that the Court itself would not subject to heightened scrutiny (as in Boerne), Congresss burden to justify the statute is high: congruence & proportionality has required a very tight fit between

means and ends, as well as a well-developed Congressional record identifying a broad pattern of irrational state violations of a judicially recognized constitutional right. 1. BUT in Tennessee v. Lane laws countering disability-based discrimination were considered a valid abrogation of state sovereign immunity. a. Court addressed a narrow issue: whether Title II of the ADA as applied to the courts was a valid exercise of 5 authority. Focused on fundamental right to access the courts. b. Strict scrutiny Congresss burden is low & easier to meet the standards of congruence & proportionality test. ii. By Contrast, in Hibbs, the Court applied a somewhat more relaxed version of the congruence and proportionality test in light of the fact that sex discrimination triggers heightened scrutiny (Morrison, which also dealt with a purported remedial expansion with respect to sex discrimination but applied a forbidding version of the congruence and proportionality test may be distinguished from Hibbs on the ground that extending remedies to the private sector is an impermissible Congressional expansion of the domains of heightened scrutiny). Because [protected characteristic] is not a suspect or semi-suspect classification, it is only subject to rational basis review. While the Equal Protection Clause still bars irrational discrimination against [protected characteristic] Congresss burden to pass preventative or remedial legislation is inversely related to the states burden in passing the discriminatory legislation in the first place. It appears, however, that the [Act] does much more than remedy or prevent actions taken on the basis of animus and therefore the statute is neither congruent with the purported constitutional right (it prohibits much more than the Constitution prohibits) nor is it a proportional response to constitutional violations by the states. [Act] appears to be much like the RFRA, which the Supreme Court voided in Boerne on the ground that the RFRA was not remedial, but an attempt to redefine the substance of the free exercise portion of the 14th Amendment. [Act] has the same infirmity. Because there is no showing that the things the Act prohibits are unconstitutional it sweeps much too broadly; it is neither congruent with nor proportional to the Constitutional problem. Here, it seems unlikely that Congress made the sort of detailed findings that the Court in cases like Boerne appears to require. Preemption Dormant Commerce Clause A state regulation which affects interstate commerce must satisfy each of three requirements to avoid violating the dormant commerce clause: Regulation must pursue a legitimate state end; Regulation must be rationally related to that legitimate state end; and Regulatory burden imposed by the state on interstate commerce must be outweighed by the states interest in enforcing its regulation.

(1) Does the state law discriminate against out-of-staters, or does it treat in-staters and out-of-staters alike? a. Three Ways to Find a Law Discriminatory: i. On its face ii. Discriminatory purpose iii. Discriminatory effect.

(2) If the state law does not discriminate, the court uses a simple balancing test: balances the burdens on interstate commerce against the benefits from the law. a. If the burden outweighs the benefits of the law, it is struck down. i. Look for conflicts between the laws of two or more states. Conflicting regulations are likely to be an undue burden on commerce since it is difficult or impossible to comply with all of the regulations. b. Under the balancing test laws are generally upheld. (3) If the state law does discriminate against out-of-staters, the law is per se invalid and will be upheld only if necessary to achieve an important (maybe even a compelling) government purpose. a. Laws generally struck down under this test. b. Test: Must Be Necessary to Achieve an Imporant Government Purpose i. Strong presumption against state or local laws that discriminate against out of staters. ii. Law must have an important purpose or goal & 1. If the state is promoting its residents own economic interests from out-ofstate competition, this will not be a legitimate state objective so the regulation is per se invalid under the Commerce Clause. a. POLICY: Several states must sink or swim together, and in the long run propserity & salvation are in union & not division. (Cardoza) 2. If the state is acting to further health, safety, or general welfare objectives (i.e. general state police powers), the Court is quite likely to hold these objectives constitute legitimate state ends. iii. Means chosen by the state must be necessary to attaining that end. There must be no less discriminatory alternative that could achieve the governments goal. (4) Exceptions: a. Congressional Approval: The constitution empowers Congress to regulate commerce among the states, and that therefore state laws burdening commerce are permissible, even when they otherwise would violate the dormant commerce clause if they have been approved by Congress. i. Of course, if Congress has acted the commerce power is no longer dormant & the issue becomes whether federal law is a constitutional exercise of the commerce power. If so, the law must be followed even if it means upholding laws that otherwise would violate the . ii. Laws might still be vulnerable to challenge if they violate Equal Protection or Privileges & Immunities Clause. b. Market Participant Exception: A state may favor its own citizens in dealing with government-owned business & receiving benefits from government programs. If state is literally a participant in the market, such as with a state-owned business, and not a regulator, the dormant commerce clause does not apply. Discrimination against out of staters is allowed that would otherwise be impermissible. State Action To even consider that issue, the threshold of state action has to be satisfied. The constitution, for the most part, is only a restraint on the government and not on the actions of private individuals. Therefore, in virtually every litigation in which an individual argues that his constitutional rights have been violated, the court can only grant relief if it finds there has been state actionsome sort of participation by a government entity suficient to make the particular provision applicable. In reaching private individuals [Act] might run afoul of the state action doctrine. However, because [D] is performing a public function traditionally and exclusively within the domain of the state it must comply with the constitution.

Exceptions: o 13th Amendment o Statutes (i.e. Title VII) o Public Fuctions Exception o Entanglement Exception If a private institution seems to be denying a constitutional right, look for a connection between the state & private instutition in order to apply equal protection. State action does not encompass the actions of government chartered, government regulated, or quasi-public establishments like common carriers or places of public amusement. (Civil Rights Cases) State action encompasses only positive government activity, not passive activity, as when the state acquiesces to discriminatory private conduct. (Civil Rights Cases) o This encompasses when a person is not in the custody of the state, the state does not have a duty to provide that person with a minimal level of well-being. (DeShaney) 11th Amendment:

No 11th Amendment Issue: The Eleventh Amendment prohibits suits against states in federal court unless the state has waived its sovereign immunity or Congress has conditioned the receipt of a benefit on consent to suit or enacted legislation under 5 of the Fourteenth Amendment that allows suit against the states in federal court. However, the Fourteenth Amendment applies only to the states, and not to local or municipal governments. Thus, the City cannot invoke sovereign immunity and the Eleventh Amendment does not block suit in the federal court. Maybe an 11th Amendment Issue: The unequivocal language of [act] purports to abrogate state sovereign immunity under the 11th Amendment, but the abrogation is only valid if the statute can be justified as an exercise of Congresss power to enforce the Civil War Amendments. (Seminole Tribe). As [Act] cannot plausibly be understood as resting on the power to enforce the 13th Amendment (slavery) or the 15th Amendment (race discrimination in voting) the waiver is only valid if the [Act] is congruent and proportional to Congresss 5 powers of the 14th Amendment. Although the regulation of . . ., an unmistakably economic activity, would qualify as a valid exercise of the Commerce Clause power, Seminole Tribe makes clear that Congress may not waive state sovereign immunity when exercising its Commerce Clause power. Thus, the question whether the suit can proceed reduces to whether [Act] is a valid exercise of the Section 5 power. (2) Has Congress clearly expressed its intent to abrogate state sovereign immunity? (clear statement rule) a. This is important because it gives states fair warning that their sovereign immunity is on the line so they have an opportunity to defend themselves via their representatives in Congress. b. If you address this first & it hasnt been met, make decision based on statutory interpretation to avoid constitutional issue (structual canon) & protect federalism interests. (3) Is the abrogation of state sovereign immunity pursuant to a valid exercise of congressional power? a. Congresss Art. I powers (i.e. the Commerce Clause) are not a valid basis; 5 is. Equal Protection WHAT LEVEL OF SCRUTINY? (1) What is the classification? (2) How does the law classify? On its face/by effects? a. If by effects, how can P prove discriminatory purpose? (Arlington Heights evidence)

(3) What should the appropriate level of scrutiny be? a. Is the group subject to a suspect classification? (Carolene Products analysis) i. Is it immutable? 1. BUT alienage classifications receive strict judicial scrutiny despite lack of immutability. Perhaps this is not as imporant a factor as history of discrimination and political powerlessness. ii. Is the group politically powerless? 1. Is the group a discrete and insular minority? a. Can group protect themselves through the political process? b. When a minority is unable to align their interests with the majoritarian, their interests cannot be represented vicariously in the legislature. c. Lack of political clout renders group highly vulnerable, and thus exacting judicial review is used to ensure discrimination is necessary and not simply a reflection of prejudice or the political power of others. 2. Look to evidence that legislation has been passed to protect them. a. If laws are passed to benefit the group, even the beneficial programs would have to be subject to heightened scrutiny, which is a disincentive for seeking a suspect classification. b. BUT Race did not become any less suspect once legislature began to deal with the concerns of blacks. (Dissent in Cleburne) 3. Does legislature need leeway to address the needs of the group? a. Judicial second guessing is undesirable. b. Are there legitimate reasons to treat group differently? c. Is the treatment to be given to the group a difficult/technical matter, and therefore a task better suited for the legislature rather than the illinformed opinion of the judiciary? 4. If group is politically powerful, is law a response to this power? An attempt to take back communities and implement other social mores? (Romer) a. But does it make it harder for group to effectuate their interests through the political process? (Romer) iii. Is there a lengthy & tragic history of discrimination? iv. Impact of quasi-suspect status on other groups? If classification is given to a large & amporphous class of people then there would be no principled way to deny quasisuspect class to a large number of other groups. (Cleburne) v. NOTE: Conservative Court seems to be retreating from subjecting new classifications to heightened scrutiny. vi. Because the Court has never identified [characteristic] as a suspect classification, rational basis review should apply. 1. Party has a dim hope that the Court would, similar to its ruling regarding disability status in Cleburne or homosexuality in Romer, accept an argument that the purported justifications here are pretextual and really based on animus and prejudice against [protected class], and that therefore the court should therefore apply the more critical rational basis with bite standard. a. Over/underinclusivity shows purported justifications are not the real reason for enacting the law. If there are no legitimate interests being sought the only reason for enacting the law is to harm a particular group, which is clearly not a legitimate interest that can support discriminatory legislation. b. State would counter: no evidence of animus. (4) Does the law survive the scrutiny? a. What is the government objective being sought? i. Is it based in animus (negative attitudes/fear)?

1. If so, P can argue the court should apply a more stingent rational basis test. ii. Legitimate State Interests: Under RB any justification a government could proffer is probably sufficient. iii. Legitimate Compelling Government Interests: 1. National security (Korematsu) 2. Remedying past discrimination by the government (Croson) 3. Diversity in education (Grutter) b. Are the means narrowly tailored to serve the end? i. What is the degree of over & underinclusiveness of the law? 1. Who does the law affect that it shouldnt? 2. Who does the law not affect that it should? 3. BUT under rational basis review the state has much more room and the court is very deferential to the states means of resolving a particular problem. Only if means were grossly over/underinclusive would the law not survive rational basis review. ii. Are there less discriminatory alternatives? FACIALLY NEUTRAL LAWS (1) Discrimatory Impact: Plaintiff must show law actually has a disparate impact on people of different races. (2) Discriminatory Purpose: Unless law is facially discriminatory (which is sufficient in itself to trigger application of strict scrutiny), plaintiff must show an intent to discriminate was a motivating factor in administrative bodys enactment decision. a. Plaintiff must show the kind of evidence of discriminatory purpose described in Arlington Heights: i. Clear patterns of effects unexplainable on other grounds. ii. Testimony from lawmakers. iii. Historical background of decision. iv. Departures from normal procedures. v. NOTE: If evidence is treated in isolation (per City of Mobile) it is rarely sufficient to prove a violation of 14th Amendment. b. If evidence exists, is it enough to prove a discriminatory purpose? i. Plaintiff must prove challenged law was conceived OR operated as a purposeful device to further unconstitutional discrimination. (City of Mobile) 1. Is this a single or a double prong test? ii. Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. The decisionmakeri.e. a state legislaturemust have selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects on an identifiable group. (Feeney) 1. If court wants to uphold the statute, apply Feeney language. 2. If it doesnt it will not use the because of standard. iii. Discrimination need not be the sole or even the primary reason for the government action in order for an Equal Protection claim to succeed. It is enough that administative body was primarily or dominantly motivated by discriminatory purpose. (Arlington Heights) iv. If impact is only evidence of discriminatory purpose, it is dispositive only in rare cases: no less than a clear pattern of effects unexplainable on grounds other than a discriminatory standard. (Yick Wo) c. Burden Shifting Test: Where P shows that a discriminatory purpose has been a motivating factor, the burden shifts to the laws defenders to demonstrate that the law would have been enacted even without this factor. (Arlington Heights) d. Then, Court decides whether there was a discriminatory purpose.

(3) Effect on Law: a. If the court finds a discriminatory purpose & effect, then there is a suspect classification and it applies appropriate level of scrutiny. i. What is the compelling government purpose being served by the law? ii. Are the means narrowly tailored to achieve that end? iii. Is there a less discriminatory alternative? b. If the court finds no discriminatory purpose or effect, then no suspect classification and the court applies rational basis test (which law usually survives). Party will argue that the act targets him on the basis of [protected characteristic] because although facially neutral, the act has a discriminatory impact on [protected group]. However, while a discriminatory impact is a good starting place for analysis, under Washington v. Davis plaintiff must go further to also show that an intent to discriminate was a motivating factor in the administrative bodys enactment decision by presenting the kind of evidence described in Arlington Heights. Evidence: o Under Arlington Heights there are four ways to show such a purpose. o The most persuasive and hardest to find is a clear statement from lawmakers within the laws legislative history. o Plaintiff could also point to the historical background of the decision or the departures from normal procedures so that, in light of the totality of relevant facts, racial motivation can be sufficiently inferred. This might be Plaintiffs best chance, and his likelihood of success would turn on the strength of the evidence he can muster. o If disparate impact is the only evidence Plaintiff has of discriminatory purpose, he must present clear proof of patterns of discrimination unexplainable on grounds other a than forbidden motive. (Yick Wo). This is dispositive only in rare cases, and it is unlikely that Plaintiffs evidence would approach the overwhelming statistical disparity demanded to satisfy the standard. Assuming Plaintiff can make some showing of evidence, he will argue that his evidence is sufficient to prove a discriminatory purpose under the standard outlined in City of Mobile to show the challenged law operated as a purposeful device to further unconstitutional discrimination. Looking to the context of the operation of the felon disenfranchisement law, in combination with the disparate impact, Plaintiff will argue, these factors warrant application of strict scrutiny. The State will argue that a facially neutral classification should not be subject to strict scrutiny. Per Feeney, discriminatory purpose implies more than intent as volition or awareness of consequences, the decision maker must have selected a particular course of action at least in past because of not merely in spite of its adverse effects on an identifiable minority group. To discharge this high burgen, Party must show statements on the record that suggests the lawmakers are doing this to harm the minority group. Because Party is not privy to such evidence, rational basis review should apply, in which case the law will be upheld so long as it is rationally related to a legitimate government interest. State will also argue for a narrow interpretation of City v. Mobile, which dealt with the structure of democracy. This case does not go into that issue. FACIALLY DISCRIMINATORY LAWS STEP ONE: Must show a compelling government interest justifying classification based on race. Compelling Government Interests:

Increasing diversity & the educational benefits that flow from an ethnically diverse student body. (Grutter, Bakke, Kennedys Concurrence in Parents Involved) Enhances classroom discussions & educational experience both in and outside the classroom. Promotes cross-racial understanding. Breaks down racial sterotypes for the workforce. Court has said it will defer to a state college or universitys good faith judgment that it has such a compelling interest. This is mildly problematic, and suggests the Court is not really applying strict scrutiny. (Kennedy concurrence in Grutter) Support from amicus brief by Military & Fortune 500 companies. A highly qualified, racially diverse officer corps educated and trained to command our nations racially diverse enlisted ranks is essential to the militarys ability to fulfill its principal mission to provide national security. Diversity in higher education is necessary to hiring a diverse workforce that provides for unique and creative approaches to problems, is better able to produce and market for diverse consumers, provides managers that can work with diverse clients, and promotes a positive work environment. BUT: Is the Court really concerned with diversity? If students and faculty are benefited by diversity to the point that it qualifies as a compelling interest justifying discrimination that would otherwise be unconstitutional, why the lack of concern about the absence at elite institutions of a critical mass of faculty and students who are Evangelical Protestants, devout Catholics, social conservatives and Republicans? It is therefore difficult to credit the claim that a desire for the intellectual benefits of diversity really motivates the defense of preference schemes. There is something special and important for society, in the world outside the university, about admitting blacks. Blacks occupy a unique place in American society, with their background of slavery, state-enforced segregation, and widespread discrimination. o Remedying past discrimination against specific litigants by the particular administrative entity in question. (U.S. v. Paradise). This is different then remedying general societal discrimination (which is not a compelling interest). o NOTE: There is no room for deference in a strict scrutiny analysis. Discriminating body must prove every benefit accrued from diversity (even though they are hard to establish). Non-Compelling Government Interests: o Racial balancing (Parents Involved) o Remedying general societal discrimination (Wygant) o Redistribution purposes, such as creating more employment opportunities for racial minorities (Croson, Adarand) o Providing role models for minorities (Wygant) o

STEP TWO: Once a compelling interest is shown, plan must be narrowly tailored. The only permissible technique is the individualized consideration of race as one factor in a more holistic decision-making process. Impermissible techniques include: o Quotas set aside for minorities. (Bakke, Croson, Parents Involved) o More mechanical approaches such as automatically adding points to an applicants score. (Gratz) Plan must be considered temporary.

STEP THREE: State must consider race neutral alternatives and show that they are ineffective or unworkable. Lower standards? Select by lottery?

GENDER CLASSIFICATIONS: Generally, sex classifications are subject to intermediate scrutiny, in which case the gender-based classification must be substantially related to an important government objective. Party will argue that the court should apply an even more rigorous level of scrutiny as advocated in U.S. v. Virginia that would treat gender classifications to something like strict scrutiny by requiring the defendant to show an exceedingly persuasive justification for the scheme. Generally, this skeptical scrutiny standard is triggered whenever the gender classification reflects gender subordination or stereotypes about sex roles, such as . . . (Hogan). Fundamental Rights (1) Which government is acting? a. State: 14th Amendment DPC or Equal Protection applies. b. Federal: 5th Amendment DPC. (2) Place abridged interest in the Constitution: a. If law in question denies the right to everybody than substantive due process is best analysis. b. If law denies the right to some, while allowing it to others, then the discrimination can be challenged as offending either Equal Protection Clause or the denial of the right under substantive due process. i. 14th Amendment Equal Protection Clause has no counterpart in the applicable to the federal government; it is limited to state action. ii. Grossly unreasonable discrimiantion by federal government must be analyzed under 5th Amendment DPC. (3) Is the interest in question one that qualifies as a protected liberty under appropriate DPC? Virtually always yes. a. What interest is being abridged? Be specific when articulating which right. i. Economic ---- Rational ii. Social --------- Basis iii. Fundamental = Probably strict scrutiny (4) If yes. Ascribe constitutional weight to the interest abridgedis the protected liberty a low-level interest or one that is deemed fundamental? a. Fundamental: Privacy, Family autonomy, procreation, consensual, private sexual activity between adults. (5) Does the challenged law interfere with the fundamental liberty in a serious enough way to impinge on or unduly burden that liberty, thereby triggering strict scrutiny? i. De minimis infringements do notapply rational basis test (see (4)). ii. There must be a direct & substantial interference with the right. (Califano) iii. If fundamental liberty has been impinged on or unduly burdened, does the law survive under strict scrutiny? 1. Does law substantially further a compelling government interest? 2. Is the law necessary to achieve the governments purpose? a. Narrowly tailored? b. Over/underinclusive? c. Least burdensome means? i. If no to any of these questions, law fails.

ii. If yesapply rational basis (see (4)) b. Courts decision on fundamentalness tends to be virtually dispositive of whether the statute is sustained or invalidated based on two-tiered scrutiny analysis. (6) If no, law will be upheld if there is any legitimate goal that a rational legislature might have thought the measure would further (rational basis). STEP 1: Is there a fundamental right implicated in the act? Fundamental rights are those that are deeply rooted in this Nations history and tradition. 2) Precedent based argument? I.e. cases involving privacy or autonomy. Especially relevant in cases involving: marriage, bearing children, raising children, declining med treatment Skinner: Violations of a persons bodily integrity are inherently suspect (i.e. active attempt by government to sterilize persons it deemed unfit to procreate). o BUT if language of Skinner is taken at face value the fundamental right at stake goes well beyond issues of bodily integrity, but instead involves the broader principle that the government cannot be in the business of deciding who should bear children and who should not, at least without offering up compelling reasons for doing so. Griswold, Eisenstadt, Roe, and Casey: right to sexual autonomy as a means of self-definition. Griswold: Unconstitutional to prohibit use of contraceptives b/c of fundamental right to privacy. This is about the sacred precincts of marriage o Emphasized protected space of the marital bedroom. Eisenstadt: Unconstitutional to prohibit sale of contraceptives to unmarried persons. Right to reproductive autonomy now exists even in non-private situations (outside of the bedroom) o Brennan asserted that the right of privacy included the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Roe: Fundamental right to privacy includes right to choose. Right is qualified by a State legislation that is narrowly tailored to serve a compelling State interestthe bar or restriction is so narrowly drawn that it fulfills only the State interest and does not reach more. o Roe recognized that the protection of liberty under DPC has a substantive dimension of fundamental significance in defining the rights of the person. Casey: Abortion is no longer a fundamental right and restrictions on it are no longer to be strictly scrutinizedmust analyze under the Undue Burden Test o if it is not related to a substantial state interest or if it is too limiting on the womans right, even if there is an interest, it will be an undue burden. Can require informed consent, info by dr. and 24 hour waiting period, but cannot require husband notification. o State can regulate ban abortions post age of viability if it includes an exception for the health of the mother. Lawrence: overruled Bowers. Liberty interest in private sexual conduct between consenting adults. o Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate contact. While the case directly holds only that states may not criminalize private homosexual conduct between consulting adults, the expansive language used by the majority suggests that the present Court is willing to recognize a fairly broad autonomy/liberty interest in private consensual adult sexual conduct generally. Loving v. Virginia: Fundamental right to get married/not married. Zablocki: fundamental right to get married, such that a law prohibiting marriage by persons who owe back child support is unconstitutional. (This case combined w/ a few others makes the prohibition against homosexual marriage hard to uphold). 3) Tradition- Is right deeply rooted in the nations history & tradition? Was it around in the countrys laws or customs when the 14th Amendment was adopted?

STEP 2- Does the challenged law interfere with the fundamental liberty in a serious enough way to impinge on or unduly burden that liberty, thereby triggering strict scrutiny? STEP 3- Assuming the court finds the right to be fundamental, the next step in the analysis is determining whether the Act is narrowly tailored to serve a compelling state interest.

STEP 4- Apply Strict Scrutiny for fundamental rights, and rational basis for mere liberty interests STRICT SCRUTINY: For governmental action to be constitutional w/ regard to limiting a fundamental right, the action must be narrowly tailored to promote a compelling State interest. Interests related to the police power are compelling State interests, Lawrence o Morality is could be a compelling State interest, IF it doesnt intrude too deeply into the private lives of individuals, Lawrence o The state goal in Zablocki was to ensure that persons with a legal obligation to financially support children not in their custody received the opportunity for counseling before marrying in an effort to protect the welfare of the out-of-custody child. The Court agreed that these were legitimate and substantial interests but that the means chosen for achieving the interests unnecessarily impinge on the right to marry and the statute was therefore invalidated. So while the interests here were legitimate and substantial, they appear to be something short of compelling o Interest in potential life of child was compelling past point of viability. (Roe) o Interest in protecting health of mother. (Roe) Narrowly Tailored o Over-inclusiveness: burdens a group w/o advancing State interest (i.e. more than necessary). o Under-inclusiveness: fails to burden a group that would advance State interest o Alternatives (i.e. least restrictive means) of finer calibration are indications that Act is NOT narrowly tailored. RATIONAL BASIS: For governmental action to be constitutional w/ regard to limiting a fundamental right, the action must rationally related to a legitimate State interest. Difficult to strike down a law as unconstitutional under this test. Morality is always a legitimate State interest.

UNDUE BURDEN (abortion): For statute to limit right to abortion, it must not impose an undue burden on the womens access to the procedure Casey, abortion is not a fundamental; thus, all abortions, pre- and post- viability, are subject to the test Statutes restricting abortions pre-viability are more suspect as constitutional violations than postExamples of constitutional restrictions: (1) informed consent requirements, (2) mandatory 411 about alternatives, 24-hour waiting period Unconstitutional restrictions: (1) total bans pre-viability, (2) total ban post- w/o exception for mothers health, (3) consent of/notification to husband

STEP 3: Does the statute commandeer the regulatory apparatuses of the several States? Congress cant commandeer States regulatory functions; act must pass constitutional scrutiny, NY v. US.

STEP 4: Congruence and proportionality 14th Amend, so apply Boerne (p.15-6)

However, in cases subsequent to Skinner, the Supreme Court has grounded its analysis with respect to reproductive rights issues not on the Equal Protection Clause, but rather in the substantive prong of the Due Process Clause.